United States Court of Appeals

For the First Circuit

No. 01-2737

ATC REALTY, LLC; SBA TOWERS, INC.,

Plaintiffs, Appellees,

v.

TOWN OF KINGSTON, NEW HAMPSHIRE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. James R. Muirhead, U.S. Magistrate Judge]

Before

Torruella, Lynch and Lipez,

Circuit Judges.

Robert D. Ciandella, with whom Robert M. Derosier and Donahue,

Tucker & Ciandella were on brief, for appellant.

Steven E. Grill, with whom Devine, Millimet & Branch, P.A.

were on brief, for appellees.

September 5, 2002
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TORRUELLA, Circuit Judge. Plaintiffs-appellees ATC

Realty, LLC and SBA Towers, Inc. filed suit in district court

seeking an order directing the Town of Kingston, New Hampshire to

grant them all the permits necessary to construct a wireless

telecommunications tower in the town. The district court granted

summary judgment in plaintiffs' favor on the ground that there was

insufficient evidence to support the Town of Kingston's decision to

deny plaintiffs' application to construct a tower. Defendantappellant Town of Kingston ("Town" or "Kingston") appeals the

district court's grant of summary judgment, arguing that the Town's

rejection of the plaintiffs' application is supported by

substantial evidence. Because we conclude that there was

substantial evidence to support the Town's decision in the record,

we reverse entry of summary judgment for plaintiffs and direct that

summary judgment be entered for the Town.

FACTUAL BACKGROUND

Wireless service companies provide consumers with mobile

telephone service. To activate the technology upon which their

service relies, these companies must construct a network of

telecommunication towers that transmits low-power, high-frequency

radio signals. Incapable of building this network alone, they rely

on plaintiffs SBA Towers and ATC Realty (collectively, "SBA/ATC")

to develop such telecommunication towers for them. Plaintiffs, in

turn, lease antenna facilities on these towers to the wireless

service companies.
1 Like many municipalities, Kingston has enacted an ordinance that

regulates the siting of wireless telecommunication towers. See

Kingston, N.H., Zoning & Building Codes art. VII, § 7.80 (1997)

("Telecommunications Facility Ordinance"). Under the ordinance, an

applicant seeking to build such a facility must obtain a

conditional use permit from the Kingston Planning Board. See id.

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In 1999, several wireless service providers noticed a

significant coverage gap along Route 125 in the northern region of

Kingston, New Hampshire. This gap left customers in the area

without wireless telecommunications service and disconnected the

telephone calls of mobile phone users passing through the gap.

Seeking to rectify this problem, SBA/ATC applied to the Kingston

Planning Board ("Planning Board" or "Board") for permission to

construct "an unlighted 180 foot free standing multi-user

telecommunication tower" on Marshall Road in Kingston.1 Two months

after the plaintiffs submitted their application, however, American

Tower, a direct competitor, applied for a permit to construct a

similar tower on Depot Road in Kingston.

After holding several public hearings, conducting on-site

inspections of the proposed tower locations, and consulting a

telecommunications expert, the Planning Board voted on October 17,

2000, to approve the construction of only one of the two proposed

towers. In the same meeting, the Board voted to deny the

plaintiffs' application for a construction permit and, in a

subsequent vote, to grant American Tower's application. Finally,

the Board voted again to deny plaintiffs' application.

Shortly thereafter, the Planning Board issued a written

decision formally adopting the results of the votes taken at the
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October 17 meeting. Using the Town's Telecommunications Facility

Ordinance to define its criteria, the Board rejected the

plaintiffs' application on four grounds:

1) Based upon the purposes section of the

Kingston zoning ordinance letters C and E it

is the responsibility of the Kingston Planning

board to provide for minimal impact siting and

to require cooperation and coordination

between telecommunications service providers

in order to reduce cumulative negative impacts

upon Kingston.

2) The location of [SBA/ATC's] proposed

location is in close proximity to residential

abutters. While there are commercial users

backing into the property, the majority of the

abutting and nearby properties are residential

and of a rural nature. The siting of this

tower does not meet the intent of the

ordinance to reduce adverse impacts on

neighborhood aesthetics.

3) The design of the [SBA/ATC] tower does not

prevent nor reduce the visual intrusive\ness

[sic] along the NH Route 125 corridor.

Minimizing the adverse visual impact is

required by the Town’s ordinances.

4) The Planning Board hired a

telecommunication consultant to assist in

determining the technical viability of the

SBA/ATC site. This consultant provided

evidence that two proposed sites offered the

same ability to cover existing service gaps.

As a result, the SBA/ATC site failed to meet

the standard of section D) of the Town’s

ordinance which indicates that all other

reasonable opportunities have been exhausted.

In addition Section VII,. 3., paragraph h and

j require the Planning Board to consider other

factors in making decisions that include

availability of existing towers and other

structures and the availability of alternative

siting locations. The Planning board has done

this with respect to this denial.

After their application was rejected in writing, SBA/ATC

filed this suit in the United States District Court for the
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District of New Hampshire, claiming that the Board's decision was

not supported by substantial evidence as required by statute. See

47 U.S.C. § 332(c)(7)(B)(iii). The district court granted summary

judgment in plaintiffs' favor, and the Town filed this timely

appeal.

STANDARD OF REVIEW

We review de novo the district court's grant of summary

judgment. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33

(1st Cir. 2001).

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]o

defeat a properly supported motion for summary judgment, the

nonmoving party must establish a trial-worthy issue by presenting

enough competent evidence to enable a finding favorable to the

nonmoving party." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842

(1st Cir. 1993) (internal quotation marks omitted). In exercising

our review, we construe the record evidence "in the light most

favorable to, and drawing all reasonable inferences in favor of,

the nonmoving party." Feliciano de la Cruz v. El Conquistador

Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
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DISCUSSION

I.

The Telecommunications Act ("TCA") works like a scale

that, inter alia, attempts to balance two objects of competing

weight: on one arm sits the need to accelerate the deployment of

telecommunications technology, while on the other arm rests the

desire to preserve state and local control over zoning matters. 47

U.S.C. § 332(c)(7)(A)-(B) (1994 & Supp. II 1996); see generally

Southwestern Bell Mobile Sys. v. Todd, 244 F.3d 51, 61 (1st Cir.

2001). Accordingly, though state and local governments have the

power "to deny . . . request[s] to place, construct, or modify

personal wireless service facilities," their decisions must be "in

writing and supported by substantial evidence contained in a

written record." 47 U.S.C. § 332(c)(7)(B)(iii). This balance

strengthens the decision making authority of local zoning boards,

while protecting wireless service providers from unsupported

decisions that stymie the expansion of telecommunication

technology. See generally Brehmer v. Planning Bd. of Wellfleet,

238 F.3d 117, 122 (1st Cir. 2001).

Plaintiffs SBA/ATC argue that they are entitled to

summary judgment because the Town's rejection of their application

is not supported by substantial evidence. "The TCA's substantial

evidence test is a procedural safeguard which is centrally directed

at whether the local zoning authority's decision is consistent with

the applicable zoning requirements." Omnipoint Communications MB

Operations v. Lincoln, 107 F. Supp. 2d 108, 115 (D. Mass. 2000)
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(citing Amherst v. Omnipoint Communications Enters., Inc., 173 F.3d

9, 16 (1st Cir. 1999)). Substantial evidence "does not mean a

large or considerable amount of evidence, but rather such evidence

as a reasonable mind might accept as adequate to support a

conclusion." Cellular Tel. Co. v. Zoning Bd. of Adjustment of HoHo-Kus, 197 F.3d 64, 71 (3d Cir. 1999) (internal citations

omitted). The Board's decision will thus withstand our scrutiny if

it is "supported by . . . more than a scintilla of evidence."

Cellular Tel. Co. v. Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999);

accord NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th

Cir. 1997) ("[Substantial evidence] requires more than a scintilla

but less than a preponderance." (internal citations omitted)).

II.

This case does not involve a claim that the Board has

effectively prohibited the provision of telecommunication services

needed to close a service gap. See 47 U.S.C. § 332(c)(7)(B)

(i)(II). Rather, the Board has granted permission to plaintiffs'

competitors to build a tower which will close the service gap along

Route 125.

The only question before us is whether the Board's

decision to deny the plaintiff's application is supported by

substantial evidence. In determining that question, in the absence

of any claim of procedural irregularity by the Board, we restrict

our review to the record before the Board. See Nat'l Tower, LLC v.

Plainville Zoning Bd. of Appeals, No. 01-2472, 2002 U.S. App. LEXIS

14465 at *17-*18 (1st Cir. July 18, 2002); Todd, 244 F.3d at 58
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(quoting Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164

F.3d 713, 718 (1st Cir. 1999)). We do not review the question de

novo; we must uphold the Board's decision unless it is not

supported by substantial evidence.

Before scrutinizing the factors cited by the Board in

defense of its decision to reject plaintiffs' application, we pause

to consider what mode of analysis to apply. The Town argues that,

in determining whether the Board's decision is supported by

substantial evidence, we should not compare the relative merits of

the two applications. Instead, we should simply focus on whether

there is sufficient evidence in the record to reject the

plaintiffs' application. Conversely, the plaintiffs claim that the

Board's votes to deny their application and to grant American

Tower's application should essentially be treated as one decision.

This approach, then, would require the Board to provide substantial

evidence for its decision to choose American Tower's application

over the plaintiffs'.

For the purposes of this appeal, we assume, without

deciding, that the comparative model proposed by plaintiffs is the

proper analytical framework. Even after employing this more

exacting model, however, we find that the plaintiffs have failed to

demonstrate that the Board's selection of American Tower's bid

instead of the plaintiffs' is not supported by substantial

evidence.
2 Pagacik noted, however, that American Tower's proposal to

construct a 140-foot tower would provide minimal overlap with the

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III.

In its written decision, the Board offered four reasons

for rejecting the plaintiffs' application to construct a

telecommunication tower. We address each justification in turn.

A. Cooperation Among Service Providers

The first reason set forth in the Board's written

decision for denying plaintiffs' application concerns the Town's

responsibility to provide for minimal impact siting and to promote

cooperation between competitors. Under the Telecommunications

Facility Ordinance, the Town is required to limit the construction

of telecommunication towers by encouraging cooperation between

competitors and having as many wireless service providers on a

single tower as possible. Art. VII, § 7.80(II)(C). The Board felt

that the plaintiffs' application did not adequately meet these

objectives.

In defense of the Board's reliance on this factor, the

Town cites persuasive evidence in the record to support the

conclusion that only one tower was necessary to rectify the

coverage gap. For instance, Tony Wells, a radio frequency engineer

for American Tower, stated that "the coverage for either [tower]

proposal would be equivalent." In addition, Ivan Pagacik, an

independent telecommunications consultant, informed the Board that

"[t]he proposed American Tower site at 140 feet does fill in th[e]

[coverage] gap."2
coverage provided by nearby towers. This decreased overlap would

likely affect the ability of mobile telephone users to make a

successful transition from coverage provided by an antenna on one

tower to coverage provided by an antenna on another tower.

This conclusion, however, is largely irrelevant because the

Planning Board granted American Tower permission to construct a

tower 40 feet higher than the height at which Pagacik conducted his

tests. As plaintiffs' counsel conceded at oral argument, the

higher a tower is, the stronger coverage it provides. Thus, it is

reasonable to infer, especially at the summary judgment level, that

the 40-foot increase in the tower's height went a long way in

fixing any overlap deficiency. General support for drawing this

inference can be found in SBA/ATC's own experimental tests, which

show that the "coverage gap could not be filled at 140 [feet]," but

it could be filled at 180 feet.

Moreover, Pagacik allegedly told several Board members,

without ambiguity, that only one tower was necessary since either

of the proposed towers would suffice to cover the service gap.

3 Because the Board specifically dealt with minimal impact siting

in its other reasons for rejecting plaintiffs' application, we

reserve our discussion on that issue until it is more pertinent.

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Though this evidence may justify the Board's decision to

construct only one tower, however, it provides no basis for

choosing American Tower's application over the plaintiffs'. The

crucial question, then, is whether the plaintiffs have shown that

the Board's reliance on this factor to select American Tower's

proposal over the plaintiffs' is not supported by substantial

evidence.3 Both SBA/ATC and American Tower assured the Planning

Board that they would allow competing wireless service providers to

use the antenna facilities on their towers. The only difference

between the proposals is that whereas the plaintiffs' proposed

tower could accommodate six wireless service providers, American

Tower could only hold five providers on its tower. Thus, in terms

of willingness to cooperate and ability to serve wireless
4 Plaintiffs also argue that the inferiority of the American Tower

proposal is evidenced by the fact that American Tower still has not

been able to lease the antenna facilities on its tower to any

wireless service provider, despite the fact that its application

was approved by the Board.

However, it is too speculative to attribute American Tower's

inability to contract with any wireless service providers to its

tower's inferiority. The dearth of clientele may be a product of

the fact that wireless service companies are waiting to see the

outcome of this litigation before committing to one tower or

waiting to see if two towers are constructed in the Town, thereby

maximizing competition and reducing lease rates. We thus give no

weight to plaintiffs' speculative argument.

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companies, the proposals are virtually identical, with the

plaintiffs' application being marginally better.4

B. Impact on Residential Properties and Neighborhood Aesthetics

The Board's second reason for denying plaintiffs'

application for a conditional use permit was that their proposed

tower was too close to residential abutters and had an adverse

impact on neighborhood aesthetics. Under the Telecommunications

Facility Ordinance, the Town is authorized to consider the

proximity of proposed towers to residential development and their

impact on the surrounding aesthetics. Art. VII, § 7.80(II)(B).

The two proposed sites are largely indistinguishable with

respect to their proximity to residential areas. Both sites have

residential abutters and commercial businesses within close

proximity. They are also essentially equidistant from the areas

zoned for commercial use. Thus, the proposals are quite similar,

if not identical, with respect to this factor.

In regard to the aesthetic impact of the towers, the

Board considered comments from residential abutters to the proposed
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sites. See, e.g., Todd, 244 F.3d at 61 (finding substantial

evidence of adverse visual impact where residents specifically

complained that the proposed tower was of a different magnitude

than anything else in the vicinity and was inconsistent with the

residential uses around it). Several residential neighbors to the

plaintiffs' site criticized SBA/ATC's tower for its adverse

aesthetic impact. Resident abutters Elisha and Steven Blaisdell

objected to the proposed tower, arguing that it would destroy the

"picturesque" quality of the surrounding area. Mariah Champagne

submitted a letter characterizing plaintiffs' tower as an "eyesore"

that should be situated in a more rural location. She also took

issue with the fact that the tower would be located on property

that was once listed by the state as being historically

significant. Tina Staublin echoed concerns over the adverse

aesthetic impact the tower would have on the neighborhood.

Finally, Andrea and Almus Kenter expressed their displeasure over

having a "clear view" of the proposed tower from their home. They

also emphasized the fact that the tower's construction would be

inconsistent with the surrounding bucolic area.

Thus, nearly forty percent of the residential abutters to

the plaintiffs' proposed site opposed the application on aesthetic

grounds. Conversely, the Board did not receive a single aesthetic

objection to the American Tower proposal. Moreover, at least one

Board member attended a crane test on American Tower's proposed

site, which involved elevating a crane to 180 feet to determine the

visibility of the proposed tower from the surrounding neighborhood.
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The results of the test demonstrated that "the crane was very

difficult to see," which may explain why no aesthetic objections

were made to the American Tower proposal.

Plaintiffs largely ignore the results of this empirical

test and concentrate their attack on what they perceive to be the

easier target: the residential abutters' comments. SBA/ATC argue

that local residents cannot defeat a tower proposal merely by

trumpeting "negative comments that are applicable to any tower,

regardless of location." Todd, 244 F.3d at 61. Because they

characterize the residential abutters' comments as generalized

aesthetic objections, plaintiffs conclude that the Board

incorrectly relied upon this evidence to distinguish between the

two proposals.

Though several of the abutters' objections to the visual

impact of the plaintiffs' tower specifically addressed why the

proposed facility was inappropriate for the chosen site, we will

assume, for the sake of argument, that the abutters' comments were

so general that they could apply to any tower. Even assuming as

much, however, the Board correctly relied on this evidence in light

of the facts of this unusual case. As noted, courts have

consistently held that a "few generalized expressions of concern

with 'aesthetics' cannot serve as substantial evidence on which [a

town] could base [a] denial." Oyster Bay, 166 F.3d at 496.

However, these rulings have not been made in the context of a town

deciding between two proposed towers. Rather, they have been made

in cases in which towns have rejected the only proposed tower
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application before them. See, e.g., Todd, 244 F.3d at 52;

Preferred Sites v. Troup County, No. 01-14182, 2002 WL 1473139, at

*2 (11th Cir. July 10, 2002); Telespectrum, Inc. v. Pub. Serv.

Comm'n of Ky., 227 F.3d 414, 418 (6th Cir. 2000); Omnipoint Corp.

v. Zoning Hearing Bd. of Pine Grove, 181 F.3d 403, 407 (3d Cir.

1999). In the latter context, courts fear that local governments

may be relying on abutters' general aesthetic objections to mask a

de facto prohibition of wireless service. See generally Todd, 244

F.3d at 61.

In contrast, the instant case, given the mode of analysis

we have employed, involves the Board's comparison between two

competing proposals and its selection of American Tower's

application over the plaintiffs'. The fact that the Board

ultimately granted a permit to the plaintiffs' competitor

demonstrates that the Board is not generally hostile to the

construction of telecommunication towers. In this context, when a

planning board has decided to construct a tower and must decide

which of several proposed towers to construct, it is perfectly

reasonable for the Board to consider, and be swayed by, the general

aesthetic concerns of residential abutters, especially where, as

here, the proposed towers are otherwise virtually identical.

In sum, whereas both applications are identical with

respect to proximity to residential abutters, there is undisputed

evidence that the plaintiffs' application would have a stronger

adverse aesthetic impact on the surrounding neighborhood.
5 Presumably, this visual test was conducted when the crane,

substituting for the tower, was in place.

6 Plaintiffs also fault the Board for failing to consider the

visual impact that the American Tower proposal would have on

property with historical significance. See Telecommunications

Facility Ordinance art. VII, § 7.80(B) (stating that the Board may

consider the impact that a proposed tower may have on "historically

significant locations"). In this regard, several Board members

observed that the plaintiffs' proposal would have no visual impact

on the historic district; however, no such finding was made with

respect to the American Tower proposal.

Though no specific finding was made regarding the visual

impact that the American Tower proposal would have on the historic

district of Kingston, the Board conducted several photographic

simulations illustrating the view of the proposed tower from

several locations. The Board also conducted an on-site inspection

and took several aerial photos of the proposed tower. Neither the

simulations nor the photographs indicates any visual intrusion on

the historic district of Kingston.

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C. Visual Intrusiveness Along Route 125

The Board based its third reason for rejecting

plaintiffs' application on the fact that "the design of the

[SBA/ATC] tower does not reduce visual intrusiveness along the

Route 125 corridor." Though the record supports the Board's

conclusion, it also indicates that both proposed towers would be

visible from Route 125. However, the best evidence of minimal

visual intrusiveness came after a Board member conducted a visual

inspection of the American Tower site from Route 125. She

concluded that she "could hardly see [the tower] with the exception

of one small spot . . . . She thought that if she were not looking

for [the tower], it would not be seen."5 Plaintiffs have presented

no evidence to challenge this observation.6
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D. Failure to Exhaust Alternative Opportunities

The final reason for denying SBA/ATC's application for a

conditional use permit was that plaintiffs had failed to exhaust

all other reasonable opportunities. Pursuant to the

Telecommunications Facility Ordinance, the Board is directed to

"[p]ermit the construction of new towers only where all other

reasonable opportunities have been exhausted." Art. VII, § 7.80

(II)(D).

The only other reasonable opportunity available here was

the competing proposal. However, the plaintiffs submitted their

application to the Planning Board two months prior to American

Tower's application. Thus, at the time SBA/ATC applied, American

Tower's non-existent application could not have provided a

reasonable opportunity that the plaintiffs were required to

exhaust.

The Board also rejected the plaintiffs' application

because it found that plaintiffs had failed to consider the

availability of existing sites. More specifically, because the

Board granted American Tower's application before its final vote to

reject the plaintiffs' application, the Board decided not to

approve the plaintiffs' application because a reasonable

alternative opportunity existed -- that is, American Tower's

recently approved site.

However, given the comparative framework we have

employed, this factor does not provide a basis for choosing

American Tower's proposal over the plaintiffs'. It assumes that
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American Tower has been selected and faults the plaintiffs for not

exploring that existing option. Thus, this justification assumes

precisely what we are trying to determine: whether there is

substantial evidence in the record to support the Board's selection

of American Tower's proposal over the plaintiffs'.

E. The Results

After reviewing the record, we find that the plaintiffs

have failed to demonstrate that the Board's selection was not

supported by substantial evidence. The Planning Board was

presented with two proposed towers that were virtually identical:

the towers were of the same height; covered the same area;

accommodated almost the same number of wireless providers; could be

seen, in comparable fashion, from Route 125; had residential

abutters; and were roughly equidistant from commercial zones.

There is only one substantive difference between the proposed

towers: unlike American Tower's application, plaintiffs' proposal

engendered much opposition due to its adverse impact on the

surrounding neighborhood aesthetic.

We must reiterate that our review is not focused on

whether the Planning Board made the best or the correct decision.

See AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of

Adjustment, 172 F.3d 307, 314 (4th Cir. 1999) ("The reviewing court

cannot replace the agency's judgment, even if the court could have

reached a justifiably different conclusion between two conflicting

views had it reviewed the matter de novo."). Rather, we must

simply determine whether the plaintiffs have demonstrated that the
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Board's decision to choose American Tower's application over their

application is supported by substantial evidence. Given the

extreme similarity between the two proposals, and the Board's

justifiable reliance on abutter comments to distinguish between

them, we find that more than a scintilla of evidence exists to

support the Board's decision and direct the district court to enter

summary judgment in favor of the Town.

IV.

This case comes to us after a decision based on cross

motions for summary judgment. Cross motions do not necessarily

indicate agreement by the parties as to the material facts in the

record. See Boston Five Cents Sav. Bank v. Sec'y of the Dep't of

Hous. and Urban Dev., 768 F.2d 5, 11-12 (1st Cir. 1985); Wiley v.

Am. Greetings Corp., 762 F.2d 139, 140-41 (1st Cir. 1985). But

here, as we have stressed, the basis for decision is limited to the

factual record that was before the Board. In this situation, it is

appropriate for an appellate court to not only reverse a grant of

summary judgment for one party, but direct its entry to the other

party. See Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228

(1st Cir. 1996) ("Cross motions simply require us to determine

whether either of the parties deserves judgment as a matter of law

on facts that are not disputed." (emphasis added)). Because there

is substantial evidence in the undisputed facts before the Board to

support its decision, we direct entry of summary judgment for the

Board and dismissal of this case. Our decision is further

supported by the clear aim of the TCA, echoed in our precedents, of
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expediting resolution of litigation over placement of wireless

telecommunication facilities. See 47 U.S.C. § 332(c)(7)(B)(v)

(establishing expedited process for such challenges); Nat'l Tower,

2002 U.S. App. LEXIS 14465 at *24-*25.

CONCLUSION

For the foregoing reasons, we reverse the district

court's grant of summary judgment and enter summary judgment in

favor of the Town.